Cite as Hines v. Remington Arms Company, Inc., 522 So.2d 152
(La.App. 1988)
Earl H. Hines, Jr. & Beverly Helms Hines, Plaintiffs-Appellants,
v.
Remington Arms Company, Inc. & Sinclair, Inc., Defendants-
Appellees.
No. 86-1140.
Court of Appeal of Louisiana, Third Circuit.
March 8, 1988.
Rehearing Denied April 11, 1988.
Writ Denied May 13, 1988.
Jones, Jones & Alexander, J.B. Jones, Cameron, for plaintiffs-
appellants.
Raggio, Cappel, Chozen & Berniard, Thomas L. Raggio, Scofield,
Bergstedt, Gerard, Mount & Veron, P.C., John B. Scofield, Lake
Charles, Stockwell, Sievert, Viecellio, Clements & Shaddock, John
S. Bradford and Thomas G. Henning, Lake Charles, for defendants-
appellees.
Before FORET, DOUCET, YELVERTON, KNOLL and CULPEPPER*,JJ.
FORET, Judge.
This is a suit by Earl H. Hines, Jr. and Beverly Helms Hines
against Remington Arms Company, Inc., et al as a result of an
accident which occurred on February 29, 1984. The only issue on
this appeal is whether the summary judgment rendered by the trial
court dismissing plaintiffs' suit against Remington Arms Company is
proper.
The trial court judge has favored us with excellent reasons
for judgment, and we take the liberty of adopting his reasons as
our own, with minor editorial changes and some supplementation,
which will be obvious.
"Mr. Hines purchased a specifically constructed .22 rifle from
one Fred Sinclair of New Haven, Indiana, about two years prior to
the incident. It was to and did serve one purpose only: that of a
bench rest target rifle for competitive shooting. Thereafter Mr.
Hines contacted Sinclair by telephone and requested that he make
another rifle exactly the same as the first one. This was
eventually accomplished. The gun was sent by Sinclair to a Lake
Charles gun dealer and picked up by Hines on the day of the
accident.
"The undisputed facts show that Sinclair is a gunsmith who
makes or alters rifles only for target shooting. He is not a dealer
or agent for Remington Arms but is allowed some discount in price
because of the volume of parts he purchases. Both of the guns he
manufactured for Mr. Hines originated with Remington.
"Sinclair purchased a Model 700 twenty-two caliber repeating
rifle from Remington, without a stock. He then removed and
discarded the barrel, leaving only the bolt and frame of the
original gun. He manufactured a new barrel and then reamed, or
honed, out the receiving chamber so the gun would accommodate
cartridges with a larger diameter but tapered down to the size of
the .22 bullet. He removed the extractors on the rifle bolt and
replaced them with others which would accommodate the larger bodied
cartridge.
"The Model 700 Rifle as manufactured by Remington has a safety
which blocks the trigger from any movement, when engaged. The
trigger has a four pound pull strength. For conversion into a
target rifle, Sinclair removed and discarded the trigger assembly
and replaced it with a Burns conversion assembly. That is a product
made by another gunsmith in Arizona. He uses a Remington trigger
mechanism, removes the safety and adds other parts to the mechanism
so the leverage of trigger pull is multiplied; This permits
adjustments to be made so the trigger then functions with a two
ounce pull strength. The completed gun then has no safety of any
sort.
"A specially made stock was then fitted to the newly created
rifle, appropriate for bench rest target shooting but completely
inappropriate for hunting or free-handed shooting. The completed
guns were not repeating rifles but were single shot, to be loaded
by hand. They were intended to be loaded when the shooter was
seated at the table at a rifle range, with the gun pointed
down-range.
"During one telephone conference between Hines and Sinclair
during the making, or conversion, of the second rifle, Sinclair
told Hines that he was still using the same reamer to enlarge the
gun chamber as had been used on the first gun. He did not believe
it was worn, but instructed Hines to test it upon receipt to
determine that it accepted his cartridges snugly to assure accuracy
in shooting. If not, Sinclair would rebuild it.
"Hines reloads his cartridges in a room in his home. During
the course of time he has been target shooting he has selected
certain ones that seem to better contribute to accuracy. He
replaces the primer, gunpowder and bullets in them and seems to
prize them.
"Upon returning home after taking delivery of the second
rifle, Hines went into his loading room, selected one of his prized
cartridges, already reloaded, and placed it in the gun breech, with
the bolt drawn to the rear. When he shoved the bolt forward to push
the cartridge into the receiving chamber the cartridge fired when
the bolt closed. The bullet entered a canister of gunpowder that
was at the back of the loading table. A terrific explosion and fire
resulted in Hines' injuries.
"Remington Arms Company brings this motion for summary
judgment on the basis that the gun which caused Hines' damages,
which likely was defective as manufactured by Sinclair, is not a
Remington Model 700 Repeating Rifle; that it only contains few of
the parts manufactured by Remington and at the time of the incident
was not being used in the manner for which it was designed.
"The Remington 700 Rifle is designed to use rim-fire
cartridges which are approximately the same diameter as the bullet
in them. It has a safety which blocks the trigger from movement,
when engaged.
"The Sinclair rifle is designed to use larger cartridges and
has no safety.
"Remington had no control over Sinclair and the manner in
which he used some of their components to build a gun totally
dissimilar to the Remington Model 700 Rifle.
"Plaintiff urges in opposition to this motion that the
accident may not have happened if the Remington 700 Rifle as
manufactured by that company had been designed and equipped with a
firing-pin safety rather than a trigger safety. He urges that it
would have been unnecessary then for the safety to be removed in
converting the trigger mechanism and it is unlikely that a
firing-pin safety would have been removed. He demonstrates that
there are other rifles on the market with firing-pin safeties and
strenuously urges that the Model 700 has a design defect for not
having one.
"That argument, however logical it may or may not be, does not
address the legal issue of a design defect. In order for a user to
recover under the design defect theory, he must demonstrate that
the object was defective, unreasonably dangerous to normal use and
that his injuries or damages were caused by the defect. (See: Weber
v. Fidelity and Casualty Insurance Co. of N.Y., 259 La. 599, 250
So.2d 754 [La. 1971]; Landry v. E.A. Caldwell, Inc., 280 So.2d 231,
La.App. 1st Cir. 1973.)
"Plaintiff and intervenor have filed affidavits by their
experts which, among other things, attempt to interpret the
testimony of others and to reach legal conclusions therefrom. Such
is not the duty or proper function of expert witnesses. However,
they concluded that the Remington Model 700 .22 Rifle is
dangerously defective in design and manufacture because it is
equipped with a trigger safety and not with a firing-pin safety.
They testify that there would have been no need for Sinclair to
remove the suggested safety in order to modify the trigger
mechanism. That is, of course, intended to present a factual issue
to preclude the requested summary judgment by Remington. It does
not counter or oppose the undisputed facts demonstrated in the
depositions filed in support of Remington's motion, nor does it
present a factual dispute insofar as the manufacturer's
responsibility imposed by the laws of this state.
"A manufacturer has no duty to make a product that is
foolproof. (Tri-State Ins. Co. of Tulsa, Oklahoma v. Fidelity &
Casualty Co. of N.Y., N.Y., 364 So.2d 657, La.App. 2nd Cir. 1978.
Writs refused.) [365 So.2d 248 (La. 1978)]
"No factual dispute is presented as to the manufacturing
alterations performed by Sinclair. Remington's evidence shows that
ample warnings accompanied the original rifle when it was shipped
to Sinclair. These specifically cautioned against any alterations
in the adjustments of the trigger mechanism, which Sinclair removed
entirely, and directed that the gun be returned to Remington for
any such adjustments desired.
"Products liability law imposes responsibility upon the
manufacturer for defects in the normal and intended use of the
product. In this instance the portions of the original rifle that
remained in the finished product sold by Sinclair bear little
relationship to the gun manufactured by Remington, and it is for a
specialized heavy-duty use much greater than the original repeating
.22 rifle. The intended use of this gun could in no manner be
considered normal to the use intended for the original gun.
"The fact issue presented by opponents to this motion can at
most lead only to speculation that perhaps a firing-pin safety
would not have been removed by Sinclair; that perhaps Hines would
in fact have engaged such a safety before closing the bolt on the
rifle and that perhaps he would have ordered a gun made
differently. Those are not the issues raised by this motion and by
the manufacturer's duty under the law.
"As stated previously, Hines was quite experienced in target
competition. He already owned a gun exactly like this one and in
fact ordered that his first gun be duplicated. He knew there was no
safety device on these guns after Sinclair's rebuilding of them. He
had no reason to believe the second gun had a safety. He was, in
fact, what the courts have described as a sophisticated user who
already knew or should have known of the dangers involved in
handling a loaded target rifle with no safety device. Remington was
under no duty to warn him of a danger with which he was already
familiar. (See: Ducote v. Liberty Mutual Ins. Co., 451 So.2d 1211,
La.App. 4th Cir. 1984 and Byrd v. Hunt Tool Shipyards, Inc., 650
Fed.2d 44, 5th Cir. 1981.)
"The sophistication of Hines in the use of the identical rifle
is not controverted herein. His deposition demonstrates that almost
every day, prior to this accident, he went to the target range and
practice fired his rifle about 100 times. Obviously, in the
approximately two years he owned the first rifle, he had fired it
several thousand times, without a safety device and without mishap.
"The basic fact upon which this motion is founded is that Mr.
Hines ordered a safety removed from a gun he wished to purchase. He
now attempts to impose liability upon the original manufacturer of
some of the components used in the remanufacturing of the kind of
gun he wanted, urging a failure to provide a foolproof, unremovable
safety. No such duty is imposed upon Remington under these
circumstances under LSA-C.C. Articles 2315, 2316 and 2545 under the
interpretations by the courts in the cases cited herein, Supra."
In summarizing, it is undisputed:
1) that plaintiff knew exactly what model rifle he wanted, he
ordered it, and he received it;
2) that plaintiff knew that the rifle would not have a safety
of any kind after customizing by Sinclair;
3) that plaintiff had fired thousands of rounds with his first
such rifle without incident, a fact which belies the
speculations by plaintiff's "experts" that the Remington 700
had a tendency to downfire;
4) that plaintiff knew of the extremely light trigger pull ...
this is what he wanted and what all target shooters want in a
competition target rifle;
5) that bench-type rifles have no safety because none is
needed in its intended normal use;
6) that bench-type target rifles are suitable for no other
purpose;
7) that these rifles are normally loaded only when in place,
ready for fire, on the bench pointing toward the target--no
safety needed here because no risk of injury to anything but
the target;
8) but even so, this rifle did have a safety in place when it
left Remington;
9) that plaintiff was a sophisticated user;
10) that plaintiff could have used an empty cartridge casing
to test the fit of his reloaded and reshaped bullet casings to
the new rifle's breech;
11) that after receiving the rifle from Remington, Sinclair
did at least the following:
a. changed the barrel completely;
b. installed a completely different stock;
c. removed the safety;
d. installed a completely different trigger mechanism;
e. modified the bolt and bolt stops;
f. modified the loading ramps;
g. changed the caliber;
h. modified the extractor to fit larger cartridges.
12) that these Remington rifles are tested at the factory
before being shipped out.
13) that the standard trigger pull is four pounds;
14) that Sinclair uses a Burns trigger assembly (no way
connected with Remington) which has a two ounce or less
trigger pull;
15) that the only component parts left in the Remington rifle
that came from the factory were the bolt which had been
altered by Sinclair as mentioned in No. 11 above, and the
frame and the screws holding it together.
To counter the above related undisputed facts, plaintiff
introduces the opinions of two "expert" witnesses to say that the
Remington rifle had a design defect in that if a firing pin safety
had been used, as is used in the Winchester 70 rifle, instead of
the trigger safety used by Remington, that this accident would not
have occurred, and that therefore a genuine dispute of fact exists.
Our review of the affidavits, etc. of these expert witnesses does
not reveal that the statements made were based on personal
knowledge, or that if the Remington rifle downfired, under what
circumstances, or that Remington was the only company using the
trigger safety, or that Winchester 70 rifles are ever used in
competition target shooting. Neither one enumerated any specific
incidents, or frequency or percentages of downfiring. Simply put,
we agree with the trial judge that the opinions of plaintiffs
"expert" witnesses were based on conclusions from what others had
said, and appear to be no more than legal conclusions.
Our summary judgment procedure is designed specifically to
accomplish exactly what the trial judge did in this case, i.e., to
bring the matter to a head prior to an expensive and protracted
trial, and put an end to litigation in which a party, in this case
the plaintiff, has no chance of prevailing at trial. Our review of
the record and of the undisputed facts shown in support of the
motion for summary judgment convinces us that no disputed issue of
material fact exists from which a rational fact finder could decide
in favor of the plaintiff. And, we believe that this is so even if
there were, arguendo, a design defect in the Remington 700 rifle.
What the plaintiff bought had no resemblance whatsoever to the
Remington 700 rifle that one sees in a sporting goods store. As a
matter of fact, the rifle in question was much more drastically
altered and modified than was the Mossberg shotgun involved in
Allien v. Humphries Motors, Inc., 509 So.2d 499 (La.App. 3 Cir.
1987), writ denied, 510 So.2d 376 (La. 1987). At least in Allien,
the shotgun was still a Mossberg shotgun; in the case at bar the
Remington 700 rifle was no more; it had simply ceased to exist. All
of its parts were discarded save the bolt assembly, the metal
frame, and the screws holding them together. This is all that
remained of the Remington 700 after Sinclair got through with it.
The design of the rifle was no longer recognizable; this is another
undisputed fact.
For the foregoing reasons, the trial court judgment is
affirmed. All costs of this appeal are assessed to plaintiffs-
appellants.
AFFIRMED.
YELVERTON, J., dissents and assigns written reasons.
KNOLL, J., dissents for the reasons assigned by YELVERTON.
YELVERTON, Judge, dissenting.
The majority and the trial judge threw out and refused to
consider the counter-affidavits of two gun experts plaintiff filed
in opposition to the motion for summary judgment. If these
affidavits are considered, it becomes clear that there are genuine
issues of material fact precluding summary judgment. It is my
opinion that it was error to throw out these affidavits.
The summary judgment evidence showed that the barrel action is
the main working component of a rifle, and that the gun which Hines
bought retained the barrel action as manufactured by Remington, a
fact which also appears in the deposition of Remington's own
expert, Stekl. Plaintiffs' experts' affidavits say that this barrel
action had a trigger safety but no firing pin safety, which is
undisputed, and that in this respect the Remington differed from a
similar gun manufactured by its main competitor, Winchester, a fact
likewise undisputed. The absence of a firing pin safety is a defect
in design, according to the affidavits of plaintiffs' experts.
Remington 700's, according to these affidavits, are prone to
downfire, or go off without pulling on the trigger. In Hines'
deposition, he stated that he was certain he never touched the
trigger before the gun went off. The experts opined that the gun
downfired in this case and that a firing pin safety, like
Winchester installs on its guns, would have prevented the gun from
going off, and thus would have prevented the accident. They said
that: the fact that the trigger safety had been removed had no
significance in the case, because the accident was not caused by
the absence of a trigger safety but rather, it was caused by the
absence of a firing pin safety; a firing pin safety would not have
been removed; a gun with a trigger safety can downfire, a gun with
a firing pin safety cannot.
Whether the absence of a firing pin safety was a defect and
whether that defect caused the accident are material facts, and
there are genuine disputes clearly presented in this record as to
those facts.
Whether or not alterations were made in the product does not
end the inquiry as to whether a manufacturer is liable for a defect
in the product. For the manufacturer to be free of liability the
alteration must be shown to have created the defect and thereby
amount to an intervening or superseding cause of the injury. St.
Pierre v. Gabel, 351 So.2d 821 (La.App. 1st Cir. 1977).
There is evidence in the record in the present case that the
defective design was in the barrel action, that the action on the
gun was the same Remington action as manufactured and that a firing
pin safety would not have been removed in the "accurizing" process.
These are genuine issues of material fact which can properly be
decided only upon a trial on the merits.
By refusing to consider the affidavits of plaintiffs' two
experts (Weisman and Greene), the majority permits a summary
judgment in favor of Remington to stand. No attack is mounted
against these experts' qualifications. One was a mechanical
engineer with expertise in guns and the other was a gunsmith. In
rejecting their affidavits, the majority sums up its reasons saying
and I quote: "the opinions of plaintiff's 'expert' witnesses were
based on conclusions from what others had said, and appear to be no
more than legal conclusions." These reasons for rejecting the
affidavits, in my opinion, are patently wrong. Information supplied
by the "others" on whom Weisman expressly relied were four lengthy
depositions, all of which are in the record--depositions given by
George Greene, Earl Hines, James A. Stekl, and Fred Sinclair.
Stekl, as pointed out above, was Remington's expert. Information on
which Greene relied is referred to not only in his affidavit but
also in his 107 page deposition which is also part of the record.
Even if these experts' opinions were based solely on what others
had said, that alone would not condemn their opinions as
unreliable, for two reasons. First, what the "others" said was
already part of the summary judgment evidence. Second, it is no bar
to an expert's testimony that he obtained information supplied to
him by other persons. State v. Austin, 282 So.2d 711 (La. 1973), In
State v. Fallen, 290 So. 2d n3 (La. 1974), the Supreme Court said:
"The character of the evidence upon which an expert bases
his opinion is ordinarily a matter which affects the weight to
be accorded the expert's opinion. It has no bearing upon the
admissibility of the evidence."
See also Federal Rules of Evidence 703.
The expert opinions contain no "legal conclusions" that I can
find. What the majority opinion perhaps disapproves in the
affidavits is the expression of opinions on what are some of the
ultimate issues in the case, like whether the absence of a firing
pin safety was a defect in design. The affidavits should not have
been rejected for that reason. There are times when an expert
witness is permitted to give his opinion as to an ultimate issue in
the case. Gage v. St. Paul Fire & Marine Insurance Company, 282
So.2d 147 (La.App. 3rd Cir. 1973), writ denied, 284 So.2d 602 (La.
1973). See also Federal Rules of Evidence 704.
Furthermore, the record does not disclose that defendants took
affirmative measures in the trial court to preclude the
consideration of the affidavits. There was no motion to strike or
other formal objection made in the trial court to the content of
the affidavits. In this respect the case is like Barnes v. Sun Oil
Co., 362 So.2d 761 (La. 1978) and Vermilion Corp. v. Vaughn, 397
So.2d 490(La. 1981). The affidavits should not have been
disregarded.
Not only are there genuine issues of fact regarding whether
harm resulted from a design defect that made the product
unreasonably dangerous to normal use, but there are also serious
questions as to whether Remington violated a duty to warn. See
LeBleu v. Homelite Division of Textron, Inc., 509 So.2d 563
(La.App. 3rd Cir. 1987). There is some evidence in the record that
this action has a propensity to downfire. The summary judgment
evidence shows that Hines neither knew nor should have known of
that propensity. Although he fired his first Remington many times
without mishap, the one and only time he handled the second gun it
downfired. There was evidence that the tendency to downfire existed
with or without the trigger pull modification. The evidence shows
that Remington never warned any user of this risk. In contrast the
summary judgment evidence reveals that Winchester bragged about the
superiority of its firing pin safety. The risk was increased with
trigger pull modifications. It was not uncommon for these guns to
be modified for target shooting. Stekl, Remington's employee and
expert, admitted that he owned two Sinclair-modified 700's himself.
If Remington did not share with Hines its knowledge of the tendency
of 700 action rifles to downfire, how could Hines, for all his
sophistication and knowledge of the use of that action, have known
of the danger? Was there a danger of downfiring inherent in the
normal use of a Remington 700? Normal use is a term that includes
all intended uses, as well as all foreseeable uses and misuses of
the product. Bloxom v. Bloxom, 512 So.2d 839 (La. 1987). Having no
experience with a downfiring weapon, did Hines possess any greater
knowledge of this danger than an ordinary user? One of the
plaintiff's experts expressed the view that it was dangerous to
"target grade" this rifle. Should Remington have warned Hines of
this danger? I think that this fact dispute should be tried on the
merits. By placing on Hines the label "sophisticated user", the
majority and the trial judge, without further explanation, shut the
door on a merit trial at which plaintiffs might have been able to
show that a duty to warn existed in the circumstances of this case.
I respectfully dissent.
FOOTNOTES
* Judge William Culpepper, Retired, participated in this decision
by appointment of the Louisiana Supreme Court as Judge Pro Tempore.